Bail in our Criminal Justice System

In Bangladesh, granting bail to the accused has often sparked public outrage, largely due to the negative perception surrounding it. It originates from the false premise that bails are granted in order to set the criminals free and thereby granting them impunity. However, in reality, bail is not a privilege extended to the accused, rather a cornerstone of any fair criminal justice system.

First, we need to understand that bail does not absolve the offenders of their criminal liabilities or allow them to flee justice. Bail also does not release the accused persons for good or put an end to their trials. Rather, it merely grants them a conditional liberty upon payment of security for their appearance on a certain day and place. On the other hand, breach of the conditions of bail may lead to its cancellation. Hence, bail does not set the accused persons at large but compels them to remain under the court’s jurisdiction.

The rationale of granting bail to the accused stems from the well-known legal principle that ‘every person charged with a criminal offence shall be presumed innocent until proved guilty’ (also known as the ‘presumption of innocence’). This presumption forms one of the core foundations of any fair criminal justice system. It has also secured its place in several national and international instruments, including the International Covenant on Civil and Political Rights (ICCPR) in Article 14(2), and our Constitution in Articles 32 and 35—the right to personal liberty read with the right to fair trial).

Importantly, it is a well-settled principle of law that ‘granting bail should be the rule, refusal should be the exception’. To understand why, imagine a person accused of committing culpable homicide not amounting to murder under section 304 of the Penal Code, 1860. The accused is then arrested by the police and kept in jail for years, only to be found innocent by the court later. How can we compensate the accused for the years lost by them owing to the lengthy trial process? This would amount to a punishment for the accused before conviction. Since we cannot know for sure whether the accused has actually committed the offence until they are tried, there must be some safeguard to protect their personal freedom albeit restrictively.

On the other hand, we should also remember that bail involves consideration of the rights of the victim/s as well. This is where we draw a line between bailable and non-bailable offences. Bailable offence is defined in the Code of Criminal Procedure, 1898 (the ‘Code’) as an offence shown as bailable in the Schedule II Column 5 of the Code, or which is made bailable by any other law for the time being in force. All other offences are therefore considered non-bailable.

However, in practical terms, bailable offences mean those offences in which bail can be claimed by the accused ‘as of right.’ It means that the authorities are bound to grant bail to the accused as soon as it is claimed under section 496 of the CrPC. Not granting bail in such cases, on the contrary, would lead to the prosecution of the concerned authorities on the ground of wrongful confinement.

Again, there is a misconception that no bail can be granted in non-bailable offences. As a matter of fact, the difference between a bailable and non-bailable offence is that granting bail in the latter case is subject to judicial discretion. Besides, according to section 497, the court or the officer granting bail in non-bailable cases must record in writing the reasons for doing so. That is why the court often looks into a number of considerations while granting bail, including the possibility of the accused (1) tampering with the evidence or threatening the witnesses, or (2) absconding or escaping the court’s jurisdiction, or (3) repeating the same offence. Furthermore, if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or life imprisonment, the court shall not release him on bail. The exception is any woman, sick or infirm person, or person under the age of sixteen years, who may still be released on bail despite being accused of the offence. Hence, the public concern that the offender might flee justice owing to his release on bail is not ruled out altogether by the courts and is given due consideration in appropriate cases.

Interestingly, bail can also help reduce the filing of false cases. When bails are not duly granted, people often abuse the penal provisions in order to harass persons they despise by implicating them in false cases. This is because if bail is granted to a person on a particular ground, it is essential that all other persons satisfying the same ground be granted bail as well. In effect, this would lead to a more frequent granting of bail to the accused persons. With bails being granted more frequently, the accused may no longer be intimidated by unlawful detention, and thus the incentive to file or run a malicious prosecution will be, arguably, by far reduced.

Finally, in a society where individual freedom is valued, bail should in all cases be the general rule. If we want to build a society where democracy, rule of law and basic human rights can co-exist, bail should be given proper consideration as a part of the reformation of the criminal justice system.

The writer is Law Desk Assistant of Law & Our Rights, The Daily Star.